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Author: Chimene Keitner

[Chimène Keitner is Alfred & Hanna Fromm Professor of International and Comparative Law at the University of California Hastings College of the Law in San Francisco. Follow her on Twitter @KeitnerLaw.]
Jutta Brunnée’s characteristically thought-provoking keynote address presents an opportunity for reflection two years into the destabilizing presidency of Donald J. Trump. The second portion of her remarks considers the backlash against...

[Chimène Keitner is Harry & Lillian Research Chair and Professor of Law at UC Hastings. She is on Twitter @KeitnerLaw.]
I look forward to discussing developments in the international law of non-state actor immunity on a panel on “Responsibility and Immunity in a Time of Chaos” at International Law Weekend this Saturday morning with co-panelists Kristen Boon and August Reinisch, moderated...

[Chimène Keitner is Harry & Lillian Hastings Research Chair and Professor of Law at the University of California Hastings College of the Law, and an Adviser on Sovereign Immunity for the American Law Institute’s Fourth Restatement of the Foreign Relations Law of the United States.]
As Duncan has pointed out, if a U.S. court sought to exercise jurisdiction over the five Chinese officials indicted by a Pennsylvania grand jury for computer fraud, identity theft, economic espionage, and trade secret theft, the officials would likely claim entitlement to foreign official immunity because they acted on behalf of China. While state action is not a required element of any of the alleged crimes, it permeates the facts of this case, which Attorney General Eric Holder emphasized “represents the first ever charges against a state actor for this type of hacking.”
The Foreign Sovereign Immunities Act provides the sole basis for obtaining jurisdiction over foreign states and their agencies or instrumentalities, see 28 U.S.C. § 1604, although it remains unsettled whether the FSIA applies to criminal proceedings against entities. The FSIA does not apply to individual foreign officials, seeSamantar v. Yousuf, except for the section creating a limited private right of action for state sponsored terrorism, 28 U.S.C. § 1605A(c). Rather, the immunity of current and former foreign officials is governed by applicable treaties (such as the Vienna Convention on Diplomatic Relations, implemented by the Diplomatic Relations Act) and, in the absence of a statute, the common law.
As Duncan indicates and Jack Goldsmith also notes, the question of foreign official immunity will only arise as a practical matter if the Chinese defendants come within the personal jurisdiction of a U.S. court. The officials could not claim status-based immunity unless they were heads of state, diplomats, or members of special diplomatic missions at the time of the legal proceedings. Instead, they would claim conduct-based immunity on the grounds that their acts were all performed on behalf of the Chinese state.
The decision to bring charges suggests that the USDOJ does not view the defendants as lawfully entitled to assert immunity for their alleged conduct. This could be for one of several reasons:

[Chimène Keitner is Harry & Lillian Hastings Research Chair and Professor of Law at the University of California Hastings College of the Law, and an Adviser on Sovereign Immunity for the American Law Institute’s Fourth Restatement of the Foreign Relations Law of the United States.]
The judgment issued by the Fourth Section of the European Court of Human Rights represents the latest installment in an ongoing conversation about the immunity ratione materiae of individuals accused of abusing their authority to commit serious violations of international law. As Philippa Webb has noted over at EJIL Talk!, the Chamber found the U.K. House of Lords’s analysis of the relationship between State immunity and foreign official immunity sufficiently persuasive to conclude that, despite patchy precedents and evolving trends, “[t]he findings of the House of Lords [in Jones v. Saudi Arabia] were neither manifestly erroneous nor arbitrary” (para. 214). My colleague William Dodge has blogged here about flaws in the Chamber’s reading of national case law, which repeats errors made by the House of Lords that I have discussed here and here. These critiques amplify those enumerated by Judge Kalaydjieva in her dissenting opinion.
Although Philippa’s point about the Chamber’s “re-integration” of State and official immunity certainly holds true in the context of civil proceedings (based on the Chamber’s acceptance of the argument that any civil suit against an individual for acts committed with state authority indirectly—and impermissibly—“implead” the State), the Chamber seems to have accepted Lord Bingham’s assertion (cited in Jones para. 32) that because “[a] State is not criminally responsible in international or English law, [it] therefore cannot be directly impleaded in criminal proceedings.” This excessively formalistic (and in some legal systems untenable) distinction led the Chamber to accept the proposition that, absent civil immunity for foreign officials, “State immunity could always be circumvented by suing named officials” (para. 202). Yet domestic legal systems have long found ways of dealing with this problem, for example by identifying whether the relief would run against the individual personally or against the state as the “real party in interest” (as the U.S. Supreme Court noted in Samantar).
As Lord Phillips of Worth Matravers, who participated in the House of Lords’s decision in Pinochet (No. 3) and in the Court of Appeal’s decision in Jones v. Saudi Arabia, wrote in his concurrence in the Court of Appeal (at para. 128): “the argument [that the state is indirectly impleaded by criminal proceedings, which was rejected in Pinochet] does not run in relation to civil proceedings either. If civil proceedings are brought against individuals for acts of torture in circumstances where the state is immune from suit ratione personae, there can be no suggestion that the state is vicariously liable.

[Chimène Keitner is Professor of Law, University of California Hastings College of the Law.]
The Kiobel majority concludes that the plaintiffs in that case impermissibly sought to extend a U.S. cause of action to foreign conduct by foreign companies against foreign victims (even though the victims subsequently became lawful U.S. residents). It dismisses the historical practice of allowing suits for transitory torts (which I have explored in more detail here) by reasoning that the cause of action...

[Chimène I. Keitner, is a Visiting Professor of Law at the USC Gould School of Law and Professor of Law, University of California Hastings College of the Law.]
Personal jurisdiction ain’t what it used to be. As Justice Ginsburg noted (Tr. at 54), in the age of Goodyear Tire, multinational corporations can’t necessarily be sued everywhere for everything. But Shell’s message...

[Chimène Keitner is an Associate Professor of Law at the University of California, Hastings College of the Law.]
The oral arguments in Kiobel and Mohamed will doubtless generate a new round of commentary on these cases. A “quick response” panel is planned for Thursday, followed by a Georgetown Law symposium on March 27 and an ASIL annual meeting panel on March 31.
Since I...

Hathaway, McElroy, and Solow offer an overview of attempts to enforce treaties directly in U.S. courts, as well as a typology of underappreciated modes of treaty enforcement, which they label indirect, defensive, and interpretive. In so doing, they enable us to better appreciate the ways in which courts engage with treaties, while at the same time reminding us that “the...

In the wake of U.S. Supreme Court’s cert grant in Kiobel v. Royal Dutch Petroleum, the Ninth Circuit has issued its second en banc opinion in Sarei v. Rio Tinto, which it had earlier tried to avoid by referring the case to mediation. No wonder: yesterday’s opinion, which addressed multiple issues raised by the parties and at least...

Many thanks to Duncan for his great post on Dominique Strauss-Kahn’s (DSK) potential immunity, and for inviting me to follow up. My short answer: status-based immunity (often referred to as “diplomatic immunity”) is not available. Conduct-based immunity (also called “official acts” or “functional” immunity) is not available either. Here’s why.
The only type of immunity that would benefit DSK would be...

First and most importantly, my sincere thanks to Marko Milanovic and Pierre-Hugues Verdier for taking the time to offer such careful and insightful reactions to my work. I’m extremely fortunate to have them as “virtual” colleagues, and I appreciate the efforts of the YJIL editors and folks at Opinio Juris in creating a forum for this online exchange.
As Marko and...

[Chimène I. Keitner, Associate Professor of Law, University of California, Hastings College of the Law; Co-Chair, American Society of International Law Annual Meeting]
United States courts are not alone in confronting the question of whether certain domestic rights extend beyond the country’s territorial borders. Yet, the field of comparative constitutional law has largely ignored the question of extraterritoriality. My Article, Rights...